Response to Reader Questions on Manafort Pardon

Editor’s note: Last week, Alex and Ryan wrote a Op-ed in the New York Times and an accompanying piece at Just Security dissecting the strategy and implications of President Donald Trump and his surrogates dangling the prospect of a pardon for Paul Manafort and others caught up in the Russia investigation. Here are eight answers to questions and comments from readers, and other issues raised by this line of analysis.

Question 1: Many people say if Manafort were pardoned, he would be forced to testify if subpoenaed to the grand jury because he could no longer invoke his Fifth Amendment right against self-incrimination. But couldn’t he still plead the Fifth Amendment and refuse to testify because of the possibility of state criminal charges being brought against him?

Yes. However, there are two scenarios in which that would not work for Manafort.

First, once pardoned, he may be granted immunity from state prosecution. It seems very possible that the calculus of special counsel Robert Mueller and the state prosecutors would change if Manafort were pardoned on the federal charges. State prosecutors might rethink whether they wish to proceed against a defendant who has been pardoned federally. Once pardoned, Mueller might very well calculate that Manafort’s testimony is more valuable than the state charges and obtain an order of “use immunity” for Manafort’s testimony. A federal grant of use immunity would bind the states (See Murphy v. Waterfront Commission).

Second, not all of Manafort’s information and conduct at issue in the federal cases is subject to state criminal law (such as failure to register as a foreign agent and federal campaign laws governing federal elections). Mueller might calculate that the subject of Manafort’s grand jury testimony would be sufficiently distinct from potential state charges that he could grant use immunity to Manafort without risk of jeopardizing the state charges. If Mueller granted use immunity to Manafort, the state prosecutors would have to show that Manafort’s subsequent testimony was not used in any way against him, directly or indirectly.

Question 2: What kinds of information could Manafort provide to the Mueller grand jury in the Russia investigation?

Manafort could offer Mueller information about some of the most significant activities during the 2016 election that could implicate Trump campaign associates in a conspiracy to coordinate election interference with Russia and Wikileaks. To start with, Manafort’s relationship with both Roger Stone and Donald Trump goes back decades. Many close observers believe Stone is at the greatest risk of being the next Trump associate to be indicted. Manafort could shed light on Stone’s activities. Perhaps even more significant, during the 2016 election Manafort was (1) directly involved in authorizing George Papadopoulos to set up a back channel meeting with senior Russian officials after a Russian operative told Papadopoulos that the Kremlin had thousands of Clinton-related emails; (2) directly involved in participating in the June 9 Trump Tower meeting expecting to receive derogatory information on Clinton by the Russian government-linked lawyer; (3) directly or indirectly involved in defeating a call for the Republican Party platform to include a provision for arming Ukraine to defend itself against Russian incursions. Most tantalizing of all, U.S. intelligence agencies reportedly intercepted communications among “suspected Russian operatives discussing their efforts to work with Manafort … to coordinate information that could damage Hillary Clinton’s election prospect … The suspected operatives relayed what they claimed were conversations with Manafort, encouraging help from the Russians.” Those reports are remarkably consistent with the raw intelligence in the Steele Dossier which referenced that a “well-developed conspiracy of co-operation between [the Trump campaign] and the Russian leadership … was managed on the TRUMP side by the Republican candidate’s campaign manager, Paul MANAFORT.”

Question 3: What kind of sentence is Manafort looking at as a result of his conviction in Virginia?

It is difficult to predict Manafort’s sentence in Virginia with certainty because it will depend on what additional conduct and personal factors Judge Ellis considers in addition to the conduct underlying the counts of conviction. Some experts have estimated however that Manafort likely faces a sentence of about ten years. Mueller could still retry Manafort on the ten counts in Virginia on which the jury hung, and the prosecutors asked the judge for more time to decide how they will proceed. What’s more, opening arguments for Manafort’s second trial in Washington, D.C. are scheduled to begin on September 24. He faces a sentence of 15 to 20 years if convicted of all the charges in that case. At 69 years old, Manafort faces the very real prospect of spending the rest of his life in jail unless he strikes a cooperation deal with prosecutors or is pardoned by the president.

Question 4: If Manafort intentionally testified falsely in the grand jury, could he be prosecuted for perjury if he had received a pardon from the President?

Yes. Pardons basically cover only past conduct. A pardon can be given at any time to eliminate future criminal exposure, but that is exposure for a person’s activities that occurred prior to the pardon. A pardon is not a get-out-of-jail card nor a license for future illegal actions. As Steve Vladeck wrote, “It cannot be the case that the President can provide someone with a forward-looking shield against any and all criminal liability in perpetuity—and the constitutional argument to that effect turns on the meaning of the word ‘pardon.’”

All that said, might President Donald Trump, in theory, test these settled understandings and do something that as far as we know is completely unprecedented in federal or state use of pardons: try to pardon Manafort for all potential crimes committed in the future arising out of the Mueller investigation? Who knows what the president will choose to do, but Manafort would not be able to rest easy with such a pardon as courts would most likely not recognize it as valid and prosecutors would have a strong interest in challenging it.

Question 5: Could Manafort receive a second pardon for the perjury committed after the first pardon?

Yes. The president could pardon Manafort after he testifies and craft the pardon to cover any of Manafort’s past actions that related to the Mueller investigation. Such a pardon could come at an enormous political cost if it covered acts of perjury and obstruction of the investigation. (Manafort has been charged already for witness tampering and obstruction.) Such a pardon could also have legal implications. Legal scholars believe that in some cases a pardon can itself constitute a violation of federal laws on obstruction, which, if true, might apply to a pardon drafted to cover Manafort’s committing perjury before the grand jury in the Russia investigation.

Question 6: Could Manafort decide to cooperate at any time?

Manafort could decide to cooperate with prosecutors within a year of sentencing and still receive a reduced sentence as a result. Rule 35 of the Rules of Criminal Procedure allows the government to seek a reduction in a convicted person’s sentence within a year of sentencing if that person provides substantial assistance in the investigation or prosecution of another person. In this case, that means that Manafort would likely want to receive a pardon within a year of sentencing, before this only other way to get out of prison while still alive evaporates. It should be noted that although Manafort can continue to receive the benefit of cooperation within a year of sentencing, the value of his cooperation likely diminishes over time. The more the investigation has progressed without Manafort’s help, the less he will be able to contribute to it because the investigators will have developed alternative leads, for example.

Question 7: After Manafort’s second trial in Washington, D.C., could Manafort be subpoenaed to testify before the grand jury?

It is possible that Mueller could decide to subpoena Manafort to the grand jury after the conclusion of his second trial in Washington, D.C., particularly if that second trial results in a conviction. If subpoenaed, Manafort could continue to assert his Fifth Amendment privilege not to testify because his federal cases would still be on appeal and because of the possibility of state charges. Mueller could then decide to grant him use immunity to compel his testimony, though this step would carry some risks. In the event Manafort’s appeals of his federal convictions resulted in a new trial for Manafort, the grant of use immunity to Manafort could complicate, if not foreclose, further proceedings, depending on the extent to which Manafort’s testimony touched on the subject matter of the federal cases. Similarly, a grant of use immunity could complicate the bringing of state cases (as we have discussed above). As long as Manafort held out hope for a pardon from the president, it is unlikely that he would agree to testify or that he would be forthcoming in his testimony. A future pardon, strategically timed for after Manafort’s grand jury testimony for example, could cover both his underlying convictions and any perjury he committed before the grand jury.

Question 8: It’s been a week since Trump and Giuliani talked about Manafort and a pardon, and nothing has happened. Does that tell us anything?

As we wrote in our op-ed, last week Giuliani raised the issue of a Manafort pardon and Trump himself offered a series of remarks about the prosecution and about Manafort as a person suggesting that a pardon was on its way. Reportedly, White House counsel Don McGahn is against a pardon, but by the end of the week it was announced that he will be stepping down. So where is the pardon? It’s increasingly clear that last week’s comments and “leaks” about a Manafort pardon were just another dangle. It appears that Trump does not want to pay the political price of a pardon today, before the midterm elections, but he wants the benefits of Manafort believing that a pardon will be coming. As we explained, that is more an affront to the administration of justice and a form of obstruction than the issuance of a pardon itself.

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About the Author(s)

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016).
You can follow him on Twitter @rgoodlaw.